Bar owners tell anti-smokers to take a hike

In an inspiring display of civil disobedience, more than a dozen bars in Kanawha County, West Virginia, joined together this week to commit the currently subversive act of simply allowing their patrons to light up within the confines of privately owned establishments whose owners don't oppose the practice:

Nobody's going to tell Kerry "Paco" Ellison's customers they can't smoke at his bar.

The Black Hawk Saloon is Ellison's bar, and he'll run it as he sees fit.

"If I don't want to pray, I don't go to church," Ellison said. "If you don't want to smoke, don't come in here."

Today, Ellison and at least a dozen other bar owners across the county defiantly encouraged their patrons to smoke in violation of the Kanawha-Charleston Health Department's six-week-old smoking ban.

Not long ago, it wasn't considered all that controversial for business owners to decide for themselves the nature of the service that they'd offer and the environment in which it would be offered -- and for potential customers to either patronize the establishment or else satisfy their preferences elsewhere.

If enough people liked what the business had to offer, it thrived. If they didn't, it either changed or failed.

But the trend in recent years has been to substitute legislated majority preferences -- the more faddish, the better -- for individual choices. When the Kanawha-Charleston Health Department handed down its smoking ban (PDF) last year, it was simply going along with the cool kids, who have made public regulation of conduct on private spaces a de rigeur legal accessory for every modern government.

The argument for smoking bans is usually made on health grounds -- the dangers of second-hand smoke, in particular. Accordingly, the Kanawha regulation is salted with language claiming an urgent need to:

(a) protect the health of the public by minimizing exposure of individuals to a proven harmful environmental toxin, i.e. secondhand smoke, while they engage in public indoor commerce; and (b) direct and/or strongly encourage the proprietors of public places of indoor commerce to provide a smoke-free environment to minimize public exposure to this harmful toxin.

But the only way members of the public can be exposed to such a "harmful environmental toxin" is if they choose to enter an establishment, to do business or to seek employment, where people are allowed to smoke. In every case, there's that all-important moment at the threshold when they get that first whiff of Marlboro and have to decide whether to take the next step.

Should I stay or should I go?

Or, if you're concerned about that single whiff, health concerns could be addressed by following the advice of Barbara Lutes, one of Ellison's customers, and "Just have a sign on the door: 'This is a smoking establishment.' "

In the end, banning smoking in private businesses starts looking a lot like banning bars from playing loud rock music because you're worried that people's hearing might be harmed (and, besides, you prefer jazz). Maybe that's what you want, but why should your preferences trump other folks' choices?

Enough people understand that point that there's significant support -- minority support, to be sure -- for business owers like Ellison who tell the law to take a hike. Maybe that's why Kanawha officials wisely decided to avoid making anybody a martyr. They've declined to issue any citations over the mass act of defiance.

That's probably a good idea. In Cleveland, when authorities got tough, the result was a proliferation of underground "smokehouses" which also feature strippers.

Hmmm ... Maybe the law is on to something ...

Forbidding bar owners to permit their customers to smoke might be very trendy, at the moment, and certainly it's a democratic expression of what today's majority wants.

But, you know, the whole point of freedom is letting individuals choose -- and telling the majority that it can, from time to time, go fuck itself.